While it certainly did not cause the same splash that the Final Title IX Rule did when they became final in May, the publication of the “Religious Liberty and Free Inquiry Final Rule” is something in which we should all take note.
This Final Rule, published in the Federal Register on September 23, 2020, is the final step in the regulatory process that began on March 21, 2019 when President Trump signed Executive Order 13864 (Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities). This Executive Order required all colleges and universities which receive Federal research dollars or educational grants to “take appropriate steps” to “promote free inquiry.” On January 16, 2020, the Department of Education announced the proposed Rule to “fulfill the requirements of the Executive Order . . . and align its regulations with Trinity Lutheran and the Memorandum on Religious Liberty.” This proposed Rule elicited over 17,000 public comments during the month-long public comment period. The Final Rule, which is sixty-seven pages, sixty-three of which are preamble, incorporated some of these comments, including concerns that were raised about enforcement.
As stated in the Executive Summary, the Final Rule is “intended to promote the First Amendment's guarantees of free expression and academic freedom, as the courts have construed them; to align with Federal statutes to protect free expression in schools; and to protect free speech on campuses nationwide.” In furtherance of this goal, the Final Rule covers four main areas: implementation of Executive Order 13864; clarification of Title IX Religious Exemptions; equal treatment of religious student organizations at public institutions; and clarification on how Title III and Title V funds can be used. These areas are discussed below.
Implementation of Executive Order 13864
The Rule requires public institutions to comply with the First Amendment, including freedom of speech, association, press, religion, assembly, petition and academic freedom; and private institutions to adhere to their policies regarding freedom, including academic freedom, as a “material condition” to receive federal grants. The preamble clarified that employees acting on behalf of the institution must also adhere to these requirements, and that institutions are not required to post all policies regarding the First Amendment or free speech in order to comply.
The Final Rule addressed enforcement concerns that were raised during public commenting. Specifically, the Department defers to the judgement from state and federal courts and will only take action against an institution if there is a “final, non-default judgment” that an institution has violated the First Amendment or an institutional policy. If there was such a judgement, the institution would be required to provide a copy of this judgment to the Department within 45 days after the judgment was entered. Even then, loss of grant funding is not definite as the preamble clarifies that “as a matter of course, the Department attempts to secure compliance by voluntary means or by imposing special conditions before turning to more serious remedies.”
Clarification of Title IX Exceptions
The Rule also codifies the factors which establish when an educational institution is “controlled by a religious organization” and is therefore eligible for a religious exemption as adherence to Title IX would not be consistent with the religious tenets. However, the preamble reiterates that institutions are not required to obtain an assurance letter from OCR, nor are they required to be on record as claiming a religious exemption in order to assert this exemption.
The Final Rule provides the following list for consideration of when an institution is “controlled by a religious organization”:
(1) That the educational institution is a school or department of divinity.
(2) That the educational institution requires its faculty, students, or employees to be members of, or otherwise engage in religious practices of, or espouse a personal belief in, the religion of the organization by which it claims to be controlled.
(3) That the educational institution, in its charter or catalog, or other official publication, contains an explicit statement that it is controlled by a religious organization or an organ thereof, or is committed to the doctrines or practices of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof.
(4) That the educational institution has a doctrinal statement or a statement of religious practices, along with a statement that members of the institution community must engage in the religious practices of, or espouse a personal belief in, the religion, its practices, or the doctrinal statement or statement of religious practices.
(5) That the educational institution has a published institutional mission that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings.
(6) Other evidence sufficient to establish that an educational institution is controlled by a religious organization, pursuant to 20 U.S.C. 1681(a)(3).
Equal Treatment of Religious Student Organizations at Public Institutions
The Final Rule prohibits public institutions from denying to “any student organization whose stated mission is religious in nature and that is at the public institution any right, benefit, or privilege that is otherwise afforded to other student organizations at the public institution . . . because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs.” The Department rejected the comments that religious liberty was an excuse to discriminate and instead reasoned that it was not “espousing any religious beliefs and is instead requiring public institutions not to discriminate against religious student organizations, no matter what their religious beliefs may be.” Additionally, the Department stated that allowing groups with different viewpoints will force those groups to co-exist, while allowing participants to adhere to their beliefs.
The Department also clarified that all-comers policies, as provided for in Christian Legal Society v. Martinez, are still permitted. An all-comers policy is one in which group funding is contingent upon allowing all parties to join that group and hold leadership positions, regardless of their beliefs. Absent an authentic all-comers policy, institutions cannot fail to recognize religious student organizations because of membership criteria.
Programs Under Title III and Title V of the Higher Education Act
The Rule clarifies that these grants cannot be used for “activities or services that constitute religious instruction, religious worship, or proselytization.” The Final Rule also defines “school or department of divinity” to mean an institution, or a department of an institution, whose program is solely to prepare students to become ministers of religion or to enter into some other religious vocation.” This was done in an effort to address concerns about how grants could or could not be used and better align with the First Amendment.
Critics to this legislation have argued that much of the Rule is benign as grants are already conditioned on compliance with the First Amendment; private institutions must already adhere to their policies, or face consequences; Supreme Court decisions have already weighed in on schools responsibilities to fund religiously affiliated organizations; and additional clarification was not needed for Title IX. However, it is still important to understand the Rule and potential implications. Additionally, some believe we should all be cautious whenever regulations are created linking federal money to speech or require public entities to fund groups which discriminate against marginalized groups, in the name of religious liberty. As with many things, time will tell.
The Regulations will take effect on November 23, 2020.
For Additional Information:
https://www.ed.gov/news/press-releases/us-secretary-education-betsy-devos-delivers-promise-protect-free-inquiry-and-religious-liberty (link to the Department of Education press release and fact sheet)
 Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities, E.O. 13864 of Mar 21, 2019, 84 Federal Register 11401.
 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Direct Grant Programs, State-Administered Formula Grant Programs, Developing Hispanic-Serving Institutions Program, and Strengthening Institutions Program, 85 Federal Register 3190 (January 17, 2020), pp. 3190-3227
 Direct Grant Programs, State-Administered Formula Grant Programs, Non Discrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, Developing Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and Universities Program, and Strengthening Historically Black Graduate Institutions Program, 85 Federal Register 59916 (September 23, 2020), pp. 59916-59982.
 Including academic freedom expands beyond what is listed in the Constitution, but is in accordance with court decisions which have held that academic freedom is a Constitutional Right
 Fed. Reg. 59927
 Fed. Reg. 59946
 Fed. Reg. 59980
 Fed. Reg. 59941